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Makers of Whiskas and Purina dry food take argument over protein levels to High Court

Whiskas says its claims about the amount of protein in its cat biscuits are clear and unambiguous in the face of a rival's accusations they are misleading and create a "smoke and mirrors" effect.

Nestle NZ, which makes Purina cat biscuits, has gone to the High Court alleging Whiskas' packaging has misleading statements in breach of the Fair Trading Act.

The issue relates to claims about protein levels in cat biscuits on Whiskas packets, which say the biscuits have the "highest level of protein". A smaller explanatory box says this is "based on average of Whiskas dry range compared with leading dry range cat food brands in supermarkets excluding Optimum".

Nestle lawyer Laura O'Gorman told Justice Pamela Andrews yesterday the comparison created a "smoke and mirrors effect" because of the way it used averages.

"If the claim is highest, you're saying it's the supreme performing example and you can't make that kind of assertion comparing it to an average."

One problem was that the subject of these comparative claims was a range of products rather than a single product, which enabled a below-average product to be called the best as long as it belonged to a product range that had a higher average overall. O'Gorman said a below-average product should not be labelled as the best. Two of the Whiskas varieties of biscuits, Seafood Selections and Meaty, had a below-average level of protein when compared to average protein levels of Whiskas and Purina dry-food ranges. These two varieties accounted for about 83 per cent of Whiskas dry food sold.

Nestle yesterday applied for summary judgment on the issue of misleading claims. It wants a declaration of this and no further representations of the protein claim being made, as well as an inquiry into damages.

If the summary judgment application failed, Nestle sought an interim injunction before a more substantial hearing.

Whiskas' local owner, Mars New Zealand, opposed both applications and asked Justice Andrews to dismiss them.

Mars lawyer Tracey Walker said the Whiskas packaging and the explanation box was "clear", "unambiguous in its terms" and "free of jargon".

The only "smoke and mirrors" was Nestle using that description, she said. Nestle had raised no evidence that any shopper had been misled. Nestle was making a "race on protein" with Purina and was "trying to clear the decks" for its own product, Walker said. Justice Andrews reserved her decision.